Document Fragment View

Matching Fragments

11. The case before us is more or less on all fours with the case in State of Gujarat v. Mehbubkhan AIR 1968 SC 1468 : 1969 Cri LJ 26. As contended in this case it was contended therein also that the notice given did not specify the particulars. Nevertheless, the Court, speaking through Vaidialingam, J., reversing the judgment of the Gujarat High Court held the notice to be good enough. We may refer to the following passage in that judgment (Para 20):

Without attempting to be exhaustive, we may state that when a person is stated to be a 'thief' that allegation is vague. Again, when it is said that 'A stole a watch from X on a particular day and at a particular place' the allegation can be said to be particular. Again, when it is stated that 'X is seen at crowded bus stands and he picks pockets' it is of a general nature of a material allegation. Under the last illustration, given above, will come the allegations, which according to the Gujarat High Court, suffer from being too general, or vague. Considering it from the point of view of the party against whom an order of externment is proposed to be passed, it must be emphasized that when he has to tender an explanation to a notice, under Section 59, he can only give an explanation, which can be of a general nature. It may be open to him to take a defence, of the action being taken, due to mala fides, malice, or mistaken identity, or he may be able to tender proof of his general good conduct, or alibi, during the period covered by the notice and the like. The allegations made in the notices, issued under Section 59, as against the respective respondents, in our opinion, contain the general nature of the material allegations made against each of them in respect of which the respondents had been given a reasonable opportunity of tendering an explanation, regarding them. Therefore it follows that the view of the Gujarat High Court that the notices, under Section 59, and the orders of externment, passed under Section 56, are invalid, cannot be sustained.

15. It may be of interest here to refer to the case of an order of externment and surveillance under the Delhi Police Act which arose before the Supreme Court in Prem Chand v. Union of India after the decision in Maneka Gandhi's case Sections 47 and 50 of the Delhi Police Act clothe the Commissioner of Police with externment powers necessary for keeping the capital city crime-free. That includes the power to remove of persons about to commit offences. In exercise of this power the Deputy Commissioner of Police, Delhi took up proceedings against the petitioner in that case and directed him to show cause why he should not be externed from the Union Territory of Delhi. The case for, externment attempted to be made out was ' on the basis of allegations, which* were vague statements,- as Jo the activities of the petitioner as causing and as calculated to cause harm, alarm and danger to the residents of certain localities. In that case the Supreme Court did not have to decide the case on the merit as it was represented for the State that no further action would be taken against the petitioner. Even so because of the importance of the question raised Krishna Iyer, J., speaking for the Bench, observed Paras 9 & 10 of AIR 1981 SC:

19. Now we will go into the merits. The main contentions raised on the merits will have to be answered against the petitioner on the basis of the decisions adverted to. As we have already indicated the plea that the notice issued was vague and the general allegations did not give any notice of specific events or incidents is a matter which we do hot propose to deal with in view of what we have already said. So is the contention that the order by the entering authority and the order in appeal are not speaking orders. The decisions which we have adverted to cover that point also and in the light of those decisions we have to hold that these are not infirmities in the proceedings. It is urged that the notice issued to the petitioner filed as annexure 'A' prior to the passing of the externment order mentions that "victims were not coming forward to give evidence" while the externment order Annexure 'B' mentions that "witnesses are not coming forward" and therefore the order is beyond the scope of the notice issued. The notice refers not to victims but to "witnesses who are victims" and therefore we do not find any divergence between the notice and the order. Further it is contended that in the externment order Annexure 'B' reference is made only to ground mentioned in Section 56(b) whereas-the appellate order makes reference to the grounds covered by Section 56(a) and (b) and therefore the appellate order is not properly directed. The appellate order makes reference to allegations falling under Section 56(a) and (b) as made in the notice. The notice Annexure 'A' contains allegations which fall under Section 56(a) as well as (b). Hence there is no scope for this plea also. It is further said that one of the allegations in the notice Annexure 'A' issued prior to the externment order does not fall within the scope of Section 56. Reference there is to the sale of liquor by the petitioner and his associates, and it is said that the sale of liquor causes disorder, evidently referring to ground (a), of causing alram. We do not think that this too is any reason to hold the externment order bad. Consequently in the light of the approach made to the contentions raised by the petitioner we do not think that there is any case for interference. The petition has to be dismissed on the merits and the. rule discharged. We do so.

20. The fact that we have not vacated the order of externment in this case and have upheld the validity of the sections need not necessarily mean that the externing authority should continue passing orders adopting the same procedure and in the same fashion. Considering the very disastrous consequences of an externment order, the financial situation of the class of people against whom such orders are being usually passed and the helplessness of persons who are subjected to such orders it will be worthwhile for the authorities concerned to exercise considerable self-restraint in passing such orders. It is also advisable for them to attempt to make a very judicial approach remembering that the consequences of their order is the ' deprivation of the freedom of movement of the person who is subjected to that order, quite often unsettling him and keeping him away from his home. It is not likely that such externees could rehabilitate themselves in another district of the State particularly with the background of their externment and there is every likelihood of such persons getting involved deeper in the criminal life of the area to which they are extemed. The power conferred on the externing authority should not be exercised with a penal content or with a punitive direction and should be exercised with due regard for human rights. We felt that while dismissing the petition now before us and adopting a course which may perhaps result in the dismissal of other petitions too a word of caution would not be out of place. We hope that this will be taken in the right spirit.